Clark v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Douglas R.
Clark, Petitioner

v.

State of South Carolina, Respondent

Appeal From Greenville County

John C. Few, Circuit Court Judge

Unpublished Opinion No. 2007-UP-411

Submitted September 1, 2007 – Filed October 4, 2007

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and
Assistant Attorney General Karen Ratigan, all of Columbia, for Respondent.

PER CURIAM:  Douglas
R. Clark appeals the denial of his petition for post-conviction relief (PCR). 
We affirm.[1] 

BACKGROUND FACTS

On
June 16, 1998, Cosette Lemon arrived at her apartment at about 11:15 p.m.  As
she entered her home with a hamper of clothes, she pushed the door closed, but
did not get it shut all the way.  She put the hamper down in her living room
and then went to lower some blinds.  She heard a sound at the door, but thought
it was her boyfriend, Terry Shackett who usually came home from work about that
time.  As she turned, she saw the profile of a man standing in the door.  The
man told Lemon her boyfriend told him to come on in.  As Lemon looked toward
the kitchen, the man grabbed her, jerked her around, and shoved her face down
into the couch.  He pulled her up off the couch and told her they were going to
the bedroom.  He pushed her down on the bed and was choking her.  He grabbed a
pillow case and told her to put it in her mouth.  He then tied it behind her
head and instructed her to put her hands behind her back and tied her hands. 
He also tied her ankles together.  He asked Lemon if she had any money and told
her he might have to cut her if she lied.  About that time, Lemon heard someone
at the door.  Lemon heard the intruder running and called out to her boyfriend
to warn him.  After she was able to free herself, she ran into the kitchen, and
saw her boyfriend chasing the man around the corner of the building.

Shackett
testified he arrived at the apartment he shared with Lemon at about 11:25. 
When he opened the screen door, he noticed the main door was open and realized
something was not right.  Suddenly, the door jerked open and he saw a black
male standing in the doorway.  Shackett grabbed the man, and the intruder
pushed Shackett to the side and began running.  Shackett gave chase, but was
unable to keep up with the intruder.

Lemon
described the intruder to police as a light-skinned black man with short hair,
between twenty and thirty years old, weighing around one hundred and
seventy-five pounds and about five-nine or five-ten in height.  The day after
the incident, Lemon and Shackett went to the police station and helped put
together a composite by use of an identi-kit.[2]  They were not satisfied with the results of that composite, and later met with
a sketch artist and put a new composite together.  Both Lemon and Shackett felt
the sketch artist’s composite looked very similar to the intruder.

Four
or five nights after the incident, Lemon and Shackett were shown two different
photo lineups.  Lemon was unable to identify anyone from the first lineup.  In
the second one, she indicated one of the individuals looked more similar than
any of the others, but she was not able to make a positive identification.  Shackett
likewise picked one individual from one of the lineups as looking similar to
the intruder, but was not sure.  Both Lemon and Shackett had pointed out the
same person

Using
the sketch artist’s composite, the police began a surveillance of the area near
Lemon’s apartment.  On the evening of June 24, officers observed a black male who
looked just like the composite walking in the area.  That person was identified
in court as Clark.  Clark’s picture was then placed in a third photographic lineup
and was shown to both Lemon and Shackett.  Lemon felt strongly that Clark’s picture looked like the suspect, but she could not be absolutely sure.  Lemon
indicated she had seen the intruder’s profile, and because it was dark and she
had only seen his face for a few seconds, she felt she could better identify
someone if she saw him in person.  However, the police informed her they could
not do that.  When Shackett was shown the third lineup, he immediately picked
out Clark as the intruder.  He testified he had no doubt this was the person. 
He then made an in-court identification of Clark as the intruder. 

Lemon
testified she went to Clark’s bond hearing, and at that time she observed Clark facing exactly the way he was in her apartment.  She stated she was looking at the
floor when she realized there was a man in shackles standing there.  When she
looked up and saw him facing that way, a chill went over her, and she realized
it was the intruder.  She testified she did not realize Clark would be at the bond
hearing, and when she looked up and saw him, it caught her by surprise.  Lemon
identified Clark in court as the person who was in her apartment that night.

The
evidence of record shows Clark was actually thirty-eight or thirty-nine years
old, was about five feet five inches tall and weighed approximately one hundred
and thirty-eight pounds.  The officer who arrested him testified, however, Clark did not look his age and he looked heavier than his actual weight.

On
direct appeal, Clark argued the court erred in failing to suppress Lemon’s
in-court identification of him.  This court affirmed.

POST-CONVICTION RELIEF

In his hearing on the application for PCR, Clark argues defense
counsel was ineffective at trial in failing to object to a portion of the solicitor’s
closing argument that allegedly vouched for and bolstered the credibility of
the witnesses.

At trial, Lemon testified she “was very hesitant to finger anyone
because [she] saw [the perpetrator] so briefly and [she] wanted to be
absolutely sure. . . .”  Lemon believed if she saw the perpetrator in person
and could see a profile, she would be able to state with certainty if the
suspect was the perpetrator.  She requested an in-person lineup, stating she
“certainly didn’t want to pick someone who was not the man.”  On
cross-examination, she repeated that she wanted to see the men in the photo
lineups in person as she “didn’t feel good about fingering anybody” and
“whenever [she] was shown a lineup, [she] did not feel comfortable saying
absolutely sure that it was anyone in those pictures because [she] wanted to be
absolutely sure.”  Lemon further testified:  “I remember thinking all at the
same time I certainly don’t want someone innocent to be charged with this
crime.”  At the bond hearing, Lemon witnessed Clark “facing exactly the same
way he was in [the] apartment.”  She identified Clark.  Shackett likewise
explained his hesitancy about identifying someone if he was not certain,
testifying:  “[O]f course, I don’t want any innocent person being accused. . .
. if I’m not a hundred percent sure, . . . I can’t pick one out.” 

During closing
arguments, the solicitor stated:

Webster’s
dictionary defines reliability as the ability to rely on or to depend on.  In
this case you had an opportunity to see the definition of the reliability from
the witness stand with two people, Cosette Lemon and Terry Shackett.  Those two
people told you time and time again, as did the police officers who met with
them, that from the beginning of this case to the very end they said, I don’t
want to pick the wrong guy, I want to be careful, I want to make sure an
innocent man is not arrested for this charge.  Over and over and over.  They
were fearful.  They were careful.  They were dependable.  They were real.  They
were honest.  And, again, in this courtroom yesterday they did all of those
same things and you had an opportunity to see the definition of the reliability
from that witness stand. 

(emphasis added).  Trial
counsel did not object. 

At
the PCR hearing, trial counsel, the PCR judge, and the assistant attorney
general all conceded that stating the two witnesses were honest was the
improper opinion of the solicitor.  Ultimately, however, the PCR judge found:  “[w]hile
the statement that ‘they were honest’ could be construed as vouching for the
credibility of the witnesses, such a statement also could be reasonably
construed as highlighting the good-faith effort during the identification
process—an effort about which the witnesses themselves had testified.”  Accordingly,
the PCR judge denied Clark’s claim for ineffective assistance of counsel.  

STANDARD OF REVIEW

The appellate court gives great deference to the post-conviction relief court’s findings of fact and
conclusions of law.  Dempsey v. State, 363 S.C. 365, 368-69, 610 S.E.2d
812, 814 (2005).  On review, a
PCR judge’s findings will be upheld if there is any evidence of probative value
sufficient to support them.  Cherry v. State, 300 S.C. 115, 119, 386
S.E.2d 624, 626 (1989). 

LAW/ANALYSIS

In
order to establish a claim of ineffective assistance of counsel, a PCR
applicant must prove that:  (1) counsel’s performance was deficient, and (2)
the deficient performance prejudiced the applicant’s case.  Id.  To show
that counsel was deficient, the applicant must establish that counsel failed to
render reasonably effective assistance under prevailing professional norms.  Id.  To show prejudice, the applicant must show that but for counsel’s errors, there
is a reasonable probability the result of the trial would have been different.  Johnson
v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997).  A reasonable
probability is a probability sufficient to undermine confidence in the outcome
of trial.  Id.

During trial, a
solicitor “cannot vouch for the credibility of a witness by expressing or
implying his personal opinion concerning a witness’ truthfulness.”  State v.
Shuler, 344 S.C. 604, 630, 545 S.E.2d 805, 818 (2001).  Additionally, “[i]t is inappropriate for the State to assure the jury
of a witness’ credibility, because the jury is charged with assessing the
credibility of witnesses based on evidence in the record.”  Matthews v.
State, 350 S.C. 272, 276, 565 S.E.2d 766, 768 (2002).

We find even if
Clark’s counsel was ineffective in failing to object to the solicitor’s
comments, there is no reasonable probability the jury’s verdict would have been
different and therefore there is no prejudice to Clark.  See Johnson,
325 S.C. at 186, 480 S.E.2d at 735 (finding no prejudice where the result of
the trial would not likely have been different).  Standing alone, the statement,
“[t]hey were honest,” could be inappropriate as vouching for the credibility of
witnesses.  However, in this case, we agree with the PCR judge’s conclusion
that the solicitor’s comments were generally based on the witnesses’ testimony,
in which they described their concern about misidentifying the perpetrator.  The
substance of the solicitor’s closing argument reminded the jury of the
diligence and hesitation with which the victims approached the identification
process.  The solicitor was not talking about the witnesses’ credibility on the
witness stand but was summarizing their testimony, which described their
conscientious manner throughout the investigation of the crime.  Because we
find the comment did not prejudice Clark, Clark has not met his burden of
demonstrating he was deprived of a fair trial.  Accordingly, the order denying Clark’s petition for PCR is

AFFIRMED.

HUFF and
STILWELL, JJ., and GOOLSBY, A.J., concur.

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] An identi-kit allows police to create a
composite image of a suspect based on verbal descriptions using preprogrammed
feature images.